Upfront: Double Trouble

Immigration groups are currently counseling noncitizens to keep a low profile, especially around cannabis.

By Tom Gogola

The rolling cruelty of Trump’s deportation junta has put the double screws to noncitizen cannabis users and growers in the North Bay.

A case now making its way through a North Coast court is illustrative of the dilemma. Sebastopol cannabis attorney Omar Figueroa is defending an undocumented man faced with deportation for growing cannabis in Northern California.

To defend his client, Figueroa enlisted an immigration lawyer in late February, just as Trump was laying down the deportation gauntlet, to write a letter to the prosecutor “explaining why a misdemeanor marijuana conviction, which may not have been a big deal in the Obama years, would be a nightmare these days,” Figueroa says via email.

Over the past decade, noncitizens were encouraged out of the shadows under President Obama’s so-called Dreamers’ initiative, while a societal shift toward cannabis acceptance coaxed legacy growers out of the shadows in California and elsewhere.

Now anyone who happens to be a noncitizen and a cannabis user or grower can face permanent expulsion under new directives pushed out by Trump and U.S. Immigration and Customs Enforcement (ICE) that call on prosecutors to throw the book at them.

Where Obama pushed for prosecutorial discretion in deference to a humane view of the immigrant experience in America—and not tearing apart families for no good reason in the process—Trump has flipped the call for discretion to a bullhorn urging maximum punishment for the undocumented.

Figueroa’s client was brought to the United States by his parents as a youth. The man is married to an American citizen, has two children with her and was in the process of “applying for his lawful permanent residency,” according to a redacted version of the immigration attorney’s letter provided to our sister paper, the Bohemian, when he was arrested.

The client was arrested on cultivation, possession for sale of cannabis and was offered a plea deal where he’d cop to a single possession charge of over 28.5 grams (one ounce) of pot.

The letter implores the unidentified district attorney(s) assigned to the case to drop the pot charges altogether, since any conviction could lead to his permanent removal from the United States. (All identifying information has been redacted from the letter, including the name of the immigration attorney who wrote it and the client.)

The letter acknowledges that ICE officials would make the call on any removal proceedings: “The exercise of prosecutorial discretion by the immigration authorities who have to decide whether or not to actually initiate a removal case against someone with only a simple possession conviction is a separate matter.”

The danger lies in the new regime’s outlook on immigrants from Mexico, which is somewhat less than welcoming. “However, the danger to [him] is high given the new publically stated priorities of the Department of Homeland Security on this matter.”

The letter implores prosecutors to not give ICE anything more to work with as it details the harsh dictates coming from the Trump administration that go beyond established immigration law as it intersects with drug policy.

Under federal drug-scheduling rules, cannabis remains listed as a controlled substance with no medical value—and under the Department of Homeland Security (DHS) rules, any possession of any “controlled substance” by a noncitizen is itself enough to prompt a deportation proceeding.

And if Figueroa’s client is convicted on drug charges and deported by ICE, his application for permanent residency becomes a moot issue since, “in order to be granted residency he must be admissible to enter the United States,” reads the immigration lawyer letter.

“There are three possible grounds of inadmissibility that could be implicated as the result of the disposition of his criminal matter,” it continues, and if any apply, he would never be able to be granted residency: Under existing immigration law, any conviction for an offense related to a federally defined “controlled substance” would cause him to be permanently exiled from the United States. “For that reason, it is imperative that [he] not be convicted of any of these offenses,” the letter reads. “If he were so convicted, even the existence of his citizen spouse would not be sufficient to qualify him for residency. He would be permanently inadmissible.”

Furthermore, under current law, the client could be deported if he made “any admissions, either in the form of a guilty plea or any other statements that could be taken by the immigration authorities as evidence of having committed such offenses.”

Even in the absence of a conviction, he could still be deported if ICE has “evidence amounting to a reason to believe that the individual has been an illicit trafficker in a controlled substance.”

That’s the existing law. Throw in a couple of mean-season executive orders from Trump, and the immigration consequences of even a single count of simple possession “would be extremely dire,” the letter continues as it lays out the new Trump push to get prosecutors to participate more forcefully when there’s an opportunity to deport someone.

On January 25, Trump issued an executive order, “Enhancing Public Safety in the Interior of the United States,” which directs executive federal agencies to execute the immigration laws and to make use of all available systems and resources to do so. (This is not the infamous executive order that bans Muslims.)

The order also identifies enforcement priorities for immigration authorities and directs the DHS, according to the immigration lawyer, to “prioritize for removal those [non-citizens] who have been convicted of any criminal offense, who have been charged with any criminal offense, where such charges have not been resolved, [or] have committed acts that constitute a chargeable criminal offense … ”

The letter notes that in late February, the DHS issued directions to immigration authorities to prioritize removal and deportation efforts according to the above-quoted categories.

Trump also issued an order in February that targets “those involved in drug trafficking by implicating them in transnational criminal organizations and violent crime.”

As Figueroa and the immigration lawyer both note, these federal moves are a stark shift away from policies that Obama pursued as president.

Bottom line, says the unnamed immigration lawyer: “It is extremely likely that significant numbers of noncitizens, who previously would not necessarily have been priorities for immigration enforcement, now will be targeted by immigration officials for deportation, or for denial of immigration benefits.”

In the meantime, immigration groups are counseling noncitizens to keep a low profile, especially around cannabis. The Cannifornian, an online source of all things pot-related in the state, recently posted a story about the cannabis noncitizen conundrum and reported that the San Francisco–based Immigrant Legal Resource Center “advises non-U.S. citizens not to use marijuana until they are citizens, and not to work in marijuana shops. On top of that, it cautions undocumented immigrants not to leave the house carrying marijuana, a medical marijuana card, paraphernalia, or other accessories such as marijuana T-shirts or stickers.

Additionally, they should never have photos, text messages or anything else connecting them to marijuana on their phone or social media accounts. Most importantly, it advises noncitizen immigrants to never admit to any immigration or border official that they have ever used or possessed marijuana.”

Does the federal push for a harsh deportation punishment fit the low-grade state crime in the view of California prosecutors? And how are California prosecutors managing this new world of deportation edicts in a state with the highest noncitizen population in the country, a state with a robust medical cannabis industry that also voted last year to legalize recreational pot?

The California District Attorneys Association is the state’s lead lobbying group for elected district attorneys across California. The Sacramento-based organization took a pass on addressing a set of general questions about the new lay of the land for prosecutors and said the question of prosecutorial discretion is an issue for local elected district attorneys to speak to.

Reached Tuesday morning for comment, Joseph Langenbahn, spokesman for the Sonoma County District Attorney’s office, said District Attorney Jill Ravitch was out of the office and unable to respond to a request for comment by our afternoon deadline. “Our management team feels that this question would be most appropriately answered by the DA herself,” he says via email.